delivered the opinion of the court.
1, It is urged the verdict is manifestly against the weight of the evidence and that it was error therefore to refuse plaintiff in error a new trial. That the opening into which the plaintiff fell was left exposed with the trap door open and that it was not actually in use for entrance or exit by any one at the time of the accident, is apparent from the evidence. That is was negligent to leave it open and unguarded in such manner in view of its exposed situation upon a public sidewalk at that hour of a winter afternoon, the jury have determined by their verdict. Whether the plaintiff was at the time in the exercise of ordinary care was a question of fact and in the absence of substantial errors of procedure or of erroneous instructions to the jury, the finding of the latter in this respect if warranted, as we think it is, by the evidence should not be disturbed. In City of Chicago v. Babcock, 143 Ill. 358-363, it is said that to hold that a pedestrian “is absolutely bound to keep his or her eyes constantly fixed on the sidewalk in a search for possible holes or other defects would be to establish a manifestly unreasonable and wholly impracticable rule. ”
2. It is urged that the verdict and judgment are excessive. There is evidence tending to show that plaintiff received a cut upon the face extending to the bone, that the cheek bone was fractured and the spine injured. The jury saw and heard the witnesses. The plaintiff herself was on the stand. From the testimony of one of the physicians called by the defense it appeared that the plaintiff was emaciated at the time of the trial. His opinion was that she had tuberculosis of the lungs and that such condition had then existed “approximately a year.” It was for the jury to determine from the evidence not only whether the plaintiff was entitled to recover but the amount of compensation, if any, which should be awarded for injuries shown by the evidence to have been caused by the accident. We find no sufficient reason for disturbing the verdict in this respect.
3. Complaint is made of certain instructions. Some of these objections are not well taken. The amount claimed in the bill of particulars is not a proper measure of damages, but the instruction complained of as it is given in the abstract limits recovery to such damages as from the evidence appear to have been sustained. There is not, it is true, any question under the evidence as to whether the trap door was “in good repair,” and the instruction in reference to that may be open to criticism. But the mere fact that instructions are in some respects inaccurate is not of itself sufficient ground for setting aside a verdict or judgment. To justify such action it should appear that alleged errors were harmful. In the present case the jury did not award the amount claimed in the bill of particulars, nor does examination of the instructions disclose harmful error.
4. Evidence admitted without objection on the part of opposing counsel cannot be objected to here for the first time. Any error of that kind must be deemed to have been waived.
5. It is urged the defendant Halberg is prejudiced by the action of the court in granting a motion for a new trial made in behalf of the city of Chicago and refusing the same motion in behalf of plaintiff in error. The ground of objection is that the jury may have considered in reaching the amount of the verdict that half of it would fall on each of the original defendants. “A plaintiff in an action of tort may take judgment against as many defendants as he pleases. The liability of tort feasors is joint and several, and the person injured can select which of them he chooses to have judgment against.” I. C. R. R. Co. v. Foulks, 191 Ill. 57-69. The plaintiff in error cannot be heard to complain because the court granted his co-defendant a new trial instead of dismissing the suit as to it. His rights are in no way affected thereby.
The judgment of the Municipal Court will be affirmed.
Affirmed.